CHU KWONG WING v. SINOLINK HOLDINGS (CHINA) LTD

HCLA1/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 1 OF 2008

(ON APPEAL FROM LBTC NO. 270 OF 2007)

---------------------

---------------------

------------------------

J U D G M E N T

------------------------

1. Having read the meticulous submissions of counsel for the defendant/applicant, I must say that I have to dismiss their application for leave to appeal on points of law. 

2. The decision of the learned adjudicator below concerned with findings of fact which were thorough and meticulous.  He disbelieved the defendant’s witness, Mr Lam, and believed Mr Chu, the claimant.  He had given his reasons therefor. 

3. The very fact the employee himself had before tried to resign and was concerned with the requirements in the written contract that he would have to give 12 months’ notice failing which there would be wages in lieu of notice, is not equivalent to the employer and the employee having orally agreed mutually that both sides would not be required to give a 12-month notice failing which there would be 12 months’ wages in lieu of notice.  The learned adjudicator found that there was no such oral agreement and he has given his reason. 

4. It is not correct to say the adjudicator had placed too much emphasises on some evidence and had ignored other evidence.  For example he did not place too much emphasises on the consecutive days of meeting in late August with the claimant.  But the fact that Mr Lam said he met the claimant on two consecutive days in the Mainland, however, was at variance with the record which shows that he had not been in the Mainland for two consecutive days.  This is only one of the points taken into account by the learned adjudicator in assessing the credibility or the lack of the same on the part of Mr Lam.  I cannot find any fault in here which would amount to an arguable point of law.  The conclusion reached by the learned adjudicator was only finding of fact from which the applicant cannot appeal. 

5. For all these reasons, having read all the papers before me I have to dismiss the application of the applicant.  Since it is only an ex parte application, I make no order as to costs.